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Judicial Empathy

Jennifer has a very good post on judicial empathy, using as her example the case in Oklahoma where a pharmacist is charged with first degree murder for finishing off a kid who tried to rob his store, as he apparently laid bleeding and unconscious on the ground.  I am not an advocate of there being no empathy in law.  It’s an important component for having a justice system, rather than just having a legal system.

But in our system of law, judges need to stand as impartial arbiters of the law.  The empathy should not come from the judge, it should come from the prosecutor, in his decision as to whether or not to bring charges, and it should come from a jury, in their duty to stand in judgment as peers of the defendant.

It was John Jay, the first Cheif Justice of the United States who said, “The jury has the right to judge both the law as well as the fact in controversy.”  I would also say not just the law, but also to judge it’s particular application.  Jennifer makes a good point about empathy.  Put either of us on that jury, and I don’t think we’d convict.  By the letter of the law, the man would appear to be guilty of murder, but justice would not be served by him being separated from his family, and sent to prison.   He did not ask to have his store robbed, and his life threatened.  He was not the person that created the lethal circumstances.  I’ll be surprised if there’s a jury in Oklahoma that will convinct him of these charges.

8 Responses to “Judicial Empathy”

  1. tjbbpgobIII says:

    Yes, but then comes into play double jepardy, which in this view is called the CIVIL RIGHTS of the victim, if you remember the policemen who were not convicted by a jury of their peers but rather by the federal government. This pharmacist may well be unconvicted by his peers but his real danger lies in the fed. courts.

  2. tjbbpgobIII says:

    I meant to say, specificaly, the policemen not convicted after the Rodney King riots.

  3. Arnie says:

    Fantastic post, Sebastion! I really had to research and think this difficult and complicated issue through. I read the Oklahoma law, and I believe the DA had a duty to arrest this pharmacist (although I think first degree murder a bit harsh – maybe second or manslaughter). But this is where the beauty of our jury system comes in. As a jury member, I would vote the pharmacist not guilty and let him walk. He didn’t ask for the situation, the robbers did. They alone are resposible for the consequences! “Empathy” is for juries (and Governors and Presidents who can commute or pardon), not for judges. That is how our Western judicial system was designed. It is not perfect (O. J., e.g.), but it’s the best in the world, and I’d rather have a dozen O.J.s on the loose than one pharmacist like this decent fellow imprisoned for events he did not initiate. But again, that is for we the people (juries) to determine. Juries can show empathy, NOT judges. Juries should comprise men who walked in the defendant’s shoes and witnessed life’s hard knocks, not judges. I would not want a man on the street from a hard scrabble life being my brain surgeon just because he can “empathize” with what I am going through – that is what I would want from my nurses! Neither would I desire or need such qualities from my Supreme Court Judges; that is what I need from my juries. Judges need to be top-notch adjudicators of the law, and subject and submissive to the same. Leave the interpretations to legislators, the empathy to juries and the executive branch, and changes to the States (Article V, U.S. Constitution). So although I “empathise” with Mr. Obama, I have to say he is wrong! Again, great post! – Arnie

  4. The pharmacist’s actions were clearly unlawful when he returned to the store, picked up another gun, and then killed the robber who was lying on the floor, apparently no longer a threat. I can understand why, in his rage, he might have felt that it was appropriate to kill this robber. But it wasn’t lawful, and there needs to be some consequences for this. Manslaughter, maybe.

    • Bitter says:

      I haven’t followed every story about the situation, but one of the early accounts I read was that the kid who was shot actually started to move to get up. If that’s the case, I think he was justified. The only security videos I saw had the robber fall off camera, so you couldn’t see. I don’t know if they have more footage or more witness accounts, but that was just something I read early on.

  5. Sebastian says:

    Manslaughter I might consider, but first degree murder?

  6. mariner says:

    I’ll be surprised if there’s a jury in Oklahoma that will convinct him of these charges.

    This case has clearly been overcharged, and I would refuse to convict on murder one.

    But Oklahoma City is a fairly large city, and cities disproportionately attract goofy leftists and other moonbats, even in formerly sane states like Oklahoma.

    • Bitter says:

      Formerly sane? What is that based on? Oklahoma is one of the only states to go more red in the last election. It was the only state in the union that had every county go red in the national election – even Oklahoma County. It’s hardly a bastion of liberalism.

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